Law & Courts

In the Line of Fire

By David J. Hoff — December 03, 1997 19 min read
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Former civil rights advocate Norma V. Cantu now runs the federal office that investigates discrimination in schools. Her views and her office’s tactics have some critics up in arms.


Norma V. Cantu, the federal civil rights enforcer whom conservatives compare to an attack dog, thanks the woman who introduces her with a gentle hug. Then, she makes her own introduction. “I’m Norma Cantu--a product of affirmative action and proud of it,” the dark-haired, dark-eyed career activist announces to an audience of college officials gathered for an Oct. 6 meeting in the nation’s capital.

Speaking with the enthusiasm of a high school cheerleader, she tells the crowd that, as a 19-year-old applicant to Harvard Law School, she may have received preferential treatment because the Ivy League school wanted to boost the number of teenagers on campus.

Or maybe the school accepted her because she graduated from Pan American University in Edinburg, Texas (now known as the University of Texas-Pan American), a school that no one in Cambridge, Mass., had ever heard of. “They looked at me with puzzlement and said: ‘You graduated from an airline?’ ” she jokes to the largely pro-affirmative action audience.

Or maybe her application won notice because she is a woman. Or maybe because she’s Hispanic.

“It could have been any kind of affirmative action,” she concludes the anecdote. “I don’t know which kind it was.”

A Pre-emptive Strike

In an April 30, 1993, column in The Wall Street Journal , conservative legal activist Clint Bolick attacked Cantu even before she had been confirmed as assistant secretary.

[Lani] Guinier and Ms. Cantu are far from household names, but the duo has the litigation experience and mental firepower to profoundly alter the civil rights landscape. Both have blazed the outer frontiers in their respective areas of voting law and education.... ... Ms. Cantu brings to her civil rights post in the Department of Education a zeal for social engineering both old and new. In Austin, Ms. Cantu argued (unsuccessfully) that a community that has desegregated its schools cannot phase out forced busing until residential integration is achieved. .p.. The appointments of Ms. Guinier and Ms. Cantu would place the powerful federal civil rights arsenal in the hands of ideologues. It also would blur the lines between advocacy groups and government agencies, as they were in the pre-Reagan years, when the executive branch subordinated law enforcement to its ideological agenda.

Affirmative action changed Cantu’s life. Because of it, she left behind her working-class roots in a Texas border town to become a prominent litigator feared by officials throughout the Lone Star State. Now, the daughter of a letter carrier and an assistant principal is staking out positions on affirmative action and other sensitive topics as the Department of Education’s assistant secretary for civil rights.

All of this has put the cheery, 43-year-old, Brownsville, Texas, native at the center of a political storm. As the front-woman for a federal office with the delicate charge of investigating discrimination in schools nationwide, she has been blasted by conservatives and liberals alike--albeit for very different reasons.

Any action she takes on a wide range of issues--affirmative action, student and faculty sexual harassment, gender equity--is potential fodder for loud complaints from the right that she’s too prescriptive and murmurs from the left that she and the rest of the Clinton administration are not aggressive enough.

“If you are hearing criticisms that we’re not left enough or we’re not right enough, it wasn’t our intent to be political at all,” Cantu says. “Our intent in the training that we invest in our staff is to enforce the laws that exist. We don’t see ourselves driven by any ideology one way or the other. We see ourselves as public servants, as law enforcers, and as people who have a pretty heavy responsibility to see to it that tax dollars aren’t used to support discrimination.”

Norma Cantu is a diminutive woman with a quick smile and a ready wit. She greets acquaintances warmly, inquiring how they are with visible concern and laughing easily at their jokes, as well as her own. On the surface, she is not an intimidator. But get beyond the surface, and she provokes strong reactions.

Conservative legal activist Clint Bolick, in a 1993 guest piece on The Wall Street Journal‘s editorial page headlined “Clinton’s Quota Queens,” attacked Cantu for showing “a zeal for social engineering” even before Congress approved her nomination to her $115,700-a-year post. (President Clinton later withdrew the name of Lani Guinier, the other target of Bolick’s piece, from consideration for the top civil rights job in the Department of Justice.)

As recently as last month, the Journal‘s editorial page called Cantu a symbol of “a legally reckless” Clinton administration.

The Weekly Standard, a conservative magazine, has set Cantu in its sights several times in the past year.

“If Congress doesn’t check Norma Cantu’s runaway leftism, it won’t really be fair to complain that she holds herself above the law,” the magazine wrote in April. “Congress will have decided: Ms. Cantu is the law.”

“It’s one of the most difficult jobs because everybody hates you. ... You’re not doing enough, or you’re doing too much.”

G.H. Gregory,
National School Boards Association

On the political left, commentator and free speech activist Nat Hentoff called Cantu a vigilante in his syndicated column this fall when he raised the possibility that her office would investigate remarks by a University of Texas professor that some portrayed as racially insensitive. The office for civil rights has no plans to investigate the comments, a spokesman for the office said recently.

Others say the OCR hasn’t been aggressive enough in pursuing its mission of civil rights enforcement, though many attribute any shortcoming to a judicial and political climate that is increasingly resistant to policies such as racial and other preferences in hiring and school admissions.

“The problem at OCR ... is a problem with the Clinton administration and the times in which they find themselves,” says J. Richard Cohen, the legal director of the Southern Poverty Law Center, a liberal public-interest firm in Montgomery, Ala.

With California’s Proposition 209 ballot initiative restricting the state’s affirmative action programs and conservative federal judges appointed by Republican administrations striking down long-standing affirmative action policies such as the one that guided admissions to the University of Texas Law School, Mr. Clinton and his team are forced to play defense with policies to preserve affirmative action. The strategy is best summarized in the president’s own words in a major affirmative action address in 1995: “Mend it, but don’t end it.”

“Where we are, it would be difficult for [the administration] to do everything civil rights advocates would want it to,” Cohen says.

Cantu arrived in Washington nearly five years ago with a reputation as an aggressive litigator who never shied away from suing government agencies over civil rights violations. As the regional counsel based in San Antonio for the Mexican American Legal Defense and Educational Fund, Cantu sued the state of Texas both over its K-12 finance formula and alleged discrimination against minorities in its higher education system.

While many such cases settle before trial, Cantu took those two to court--and won.

MALDEF is one of the many civil rights groups modeled after the NAACP Legal Defense and Educational Fund after its success in ending legalized school segregation in the 1950s. The Hispanic advocacy group is based in San Francisco and has offices throughout the country, including Washington, Cantu’s current home.

“Norma has a record of being a butt-kicking litigator with some success,” said Robert A. Schaeffer, the public education director of the Center for Fair & Open Testing, a Boston watchdog group known as FairTest that works closely with MALDEF and other civil rights groups on cases protesting alleged biases in standardized testing.

The OCR under Cantu has adopted a middle-of-the-road approach geared toward mediating resolutions between schools, colleges, and complainants.

Cantu’s success in Texas led civil rights activists to hope--and conservatives to fear--that putting her in charge of an Education Department staff of almost 700 with the power to withhold federal funding would result in aggressive enforcement.

So far, it hasn’t happened. Instead, Cantu and her office have adopted a middle-of-the-road approach geared toward mediating resolutions between schools, colleges, and complainants. The move disappointed many on the left, while also failing to silence Cantu’s critics from the right.

The criticism “has more to do with the nature of the job” than with Cantu’s performance or the administration’s policies, said Deval L. Patrick, who headed the civil rights division at the Justice Department for almost three years before leaving last January.

“It’s one of the most difficult jobs because everybody hates you,” says Gwendolyn H. Gregory, the deputy general counsel for the National School Boards Association in Alexandria, Va., and an OCR official in the 1970s. “You’re not doing enough, or you’re doing too much.”

That has been the history of the office. In the 1970s, when federal education programs were under the former Department of Health, Education, and Welfare, Congress annually pressured OCR to back down on its investigations into busing.

More recently, Michael L. Williams, an assistant secretary for civil rights in the Bush administration, touched off a firestorm when he informed college officials that the practice of exclusively reserving scholarship money for minority applicants was illegal. Williams, who now practices school law in Dallas, declined comment for this story, saying he knows how difficult Cantu’s position is and that she doesn’t need any of her predecessors criticizing her publicly.

In fiscal 1996 alone, the OCR received 4,828 complaints. Sixty percent of those resulted in an investigation; the rest were dismissed after a brief review. Many were rejected because they already were the subject of a lawsuit or a review by a state agency. Others lacked enough evidence to justify a detailed inquiry.

In addition, Cantu’s office launched 146 compliance reviews--investigations initiated by the OCR without a specific complaint from a parent, student, or teacher.

In fiscal 1996, more than half of the complaints the OCR received concerned disability-bias issues, which may range from a school’s failure to be accessible for wheelchairs to a parent’s dissatisfaction with the teacher of a learning-disabled child.

Almost 900 complaints that year focused on discrimination based on race or national origin in colleges and universities, which Title VI of the Civil Rights Act of 1964 prohibits in any school that accepts federal aid or student loans. More than 300 complaints called for investigation under Title IX of the Education Amendments of 1972, which forbids sex discrimination in schools and colleges receiving federal funding. Most of the OCR’S Title IX reviews address equity in athletics, but sometimes they deal with alleged sexual harassment by teachers and students.

Cantu’s division also has reviewed state and national student tests to determine whether they discriminate against minorities. The OCR also has examined at least one charter school’s treatment of a disabled student.

Such a scope gives Cantu and her investigators the right to pry into just about anything a school does, from how an architect designs a new front entrance to how much a school board pays coaches--not to mention most of what happens in classrooms and on playgrounds.

While the OCR cannot sue schools, the office can halt a school’s federal funding until it complies with civil rights laws to the OCR’s satisfaction. The office also can refer cases to the Justice Department for legal action.

While investigations rarely lead to such action, just the threat of a federal funding freeze creates tension between federal and school officials.

For most K-12 school districts, federal dollars make up at least 5 percent of their annual budgets. For colleges and universities, federal money pays for or guarantees most of the financial aid and loans available to their students.

Few of the cases that Cantu’s office investigates each year are noticed by anyone other than the participants. But, occasionally, attention-getting cases will end up being debated in Congress and the press.

This fall, the OCR generated media attention when it declared that Denver’s bilingual education program violated civil rights laws because its classes weren’t as challenging as those for general education students. The federal office called the district’s plan to fix the problem “insufficient” and threatened to withhold some or all of the city’s $30 million a year in federal aid if the plan isn’t revised to the federal regulators’ satisfaction.

In 1994, in another high-profile case, House Republicans complained that the OCR overstepped its mandate by looking for racial bias in Ohio’s mandatory high school exit exam. Critics portrayed Cantu and her team as aggressively pursuing the case. When the OCR failed to find any racial bias and simply won a promise from the state that it would offer remedial courses to students who failed the tests, the critics declared victory and proclaimed that federal officials had backed down in the face of criticism.

Few of the cases OCR investigates are noticed by anyone but the participants. But, occasionally, attention-getting cases will end up being debated in Congress and the press.

But, according to those involved in the case, such statements are not accurate. They counter that the OCR acted only after receiving a complaint from the Cleveland chapter of the National Association for the Advancement of Colored People. And when the investigators arrived, they did not come with an agenda favoring the NAACP, according to Ohio’s top education official at the time.

“Whatever the problem was in Cleveland, it cut across racial and ethnic lines,” said Ted Sanders, Ohio’s superintendent of public instruction in 1994, who is now the president of Southern Illinois University at Carbondale. “Statistically, I had a compelling case that whatever was happening in Cleveland was not race-based, ethnicity-based, or gender-based.”

“I was concerned about us receiving a fair day in court with them,” said Sanders, who had been a deputy secretary of education in the Bush administration. “We actually received that from them.”

Cantu’s office also chose not to hew to the position of a group that had been one of her allies at MALDEF in a separate testing case.

In that situation, FairTest and the American Civil Liberties Union protested that the National Merit Scholarship program discriminated against girls. The scholarships are awarded based on scores on the Preliminary SAT, a practice test for the SAT college-entrance exam, and girls traditionally score worse on the tests than boys do.

In the settlement, the College Board, which oversees the test, and the Educational Testing Service, which administers it, promised to accelerate plans to include a writing component in the test--something they said would result in better test scores for girls.

“They bent over backwards to find terms on which the defendants could settle,” FairTest’s Schaeffer says of the ocr officials. “It was a half-way, face-saving measure [for the defendants]. It substantially narrowed the gender gap, but it’s still not a level playing field.”

But few cases enter the public eye the way the Ohio or PSAT investigations do. Many of them are quietly settled when the OCR negotiates a deal between the school district and the complainants.

“There’s a lot that the office for civil rights does that doesn’t get noticed because conciliation doesn’t get noticed,” says Patrick, the former assistant attorney general for civil rights, who is now practicing civil rights law at the Boston firm of Day, Berry & Howard.

Cantu says that the emphasis on mediation has been a hallmark of her tenure. Under her, the OCR has revised its procedures so investigators attempt to resolve differences from the start. In previous administrations, investigators kept the parties separate while they collected facts, a process that often takes six months or more.

“Mediating between the parent and the school results in a very fast resolution, and it saves the taxpayer the cost of the investigation and saves the school district the cost and time of the investigation,” Cantu says.

For Cantu, being stuck in the middle is part of the job.

Cohen, from the Southern Poverty Law Center, says the OCR quickly resolved his group’s complaint against the state of Georgia for failing to identify black students who may be learning-disabled. The rapid response was possible in part because his center amassed convincing evidence before filing the complaint, Cohen says.

“It’s dramatically different, and it’s a healthy effort,” Perry A. Zirkel, a professor of education at Lehigh University in Bethlehem, Pa., says of the office’s investigatory approach. “But if you look at the actual decisions that are made after investigations, you see OCR is slow to change.”

For example, even with Cantu’s policies, the number of complaints the OCR investigates has not dropped off dramatically, especially in the area of disability law.

Other critics question whether the work-it-out approach is appropriate. With the prospect of a prolonged investigation, the OCR can scare local officials into agreeing to do things not required under law.

“They kind of make it up as they go along,” says Terence J. Pell, a lawyer for the Washington-based Center for Individual Rights, a conservative legal organization. Pell is an affirmative action opponent and was a deputy assistant education secretary for civil rights in the Reagan administration. “They count on the fact that they never have to defend [their positions] in court. ... That’s always been troubling about OCR, but [Cantu has] furthered it.”

That criticism is not necessarily fair, Zirkel says. “I don’t think the parties have anything to lose,” he says. “What we have to gain is a more expedited process.”

Then there is affirmative action. The subject near and dear to Cantu’s heart has been at the core of some of her most visible occupational challenges of late. Opponents of affirmative action are watching closely as the OCR reviews the University of California’s admissions policies in the wake of Proposition 209, a statewide ballot initiative that prohibits most racial and gender preferences in state and local government programs, including K-12 education. MALDEF, Cantu’s former employer, filed a complaint with the OCR alleging that admissions criteria such as standardized-test scores pose unfair barriers to minority applicants. The investigation is ongoing.

They also will watch Cantu as she reviews the Texas higher education system for admissions bias. The investigation put her in the center of a firestorm once before, a fact she conveniently fails to mention in her speech to college officials in Washington.

In that speech, Cantu digresses into a long legal history of affirmative action. She reviews the passage of the Civil Rights Act of 1964. She reminds the audience of the 1978 U.S. Supreme Court decision in Regents of the University of California v. Bakke that allows colleges and universities to use affirmative action with the goal of diversifying their student body.

The most current item she mentions is an April letter in which a high-ranking Justice Department official clearly states the Clinton administration’s support for affirmative action, both to rectify past discrimination and to promote diversity on campuses.

But when she describes that letter, she leaves out one important detail: It never would have been written had she not sent a letter of her own that critics say demonstrates her willingness to ignore federal law to defend her ideology.

One month before the Justice Department’s April 10 statement, Cantu sent a letter to Texas officials taking a position on one of the most fiercely debated recent court cases on affirmative action. In it, she acknowledged that the 1996 federal appeals court decision in Hopwood v. Texas rejected affirmative action as a way to promote diversity. But she said the decision applied only to the University of Texas Law School--the subject of the case--and not to any other college in the state or other states bound by the precedent set by the U.S. Court of Appeals for the 5th Circuit.

The Hopwood case, she wrote, “should not be used to invalidate the affirmative action admission program” at the University of Texas College of Education or any other state college or university.

In fact, she added, the rest of the state’s higher education institutions would risk losing their federal student aid and student loan money if they “failed to take appropriate remedial measures” to get rid of past discrimination. In most cases, that would include admissions preferences for minorities.

A Texas official said Cantu’s missive muddied the waters.

“There were different people, even different attorneys, who had different interpretations over what Hopwood meant,” says Ray Grasshoff, a spokesman for the Texas Higher Education Coordinating Board. “Her letter was part of the confusion.”

The letter drew a quick reaction from Cantu’s most visible critics in the press--the editors of The Wall Street Journal‘s editorial page and their contributors.

Even Cantu’s supporters acknowledge that her zeal sometimes leads her into trouble.

“Not since George Wallace blocked the schoolhouse door has an elected official so openly and willfully encouraged state officials to defy a federal court,” Pell, the lawyer representing the victorious students in Hopwood, wrote April 2.

Eight days later, the Justice Department sent its own letter, this one to Judith Winston, who was the Education Department’s general counsel at the time.

Walter Dellinger, the acting solicitor general, reminded Winston, that the Clinton administration had admitted that the Hopwood decision “will effectively eliminate all affirmative action admissions programs in higher education” in Texas, Mississippi, and Louisiana--the states that are in the 5th Circuit. What’s more, he wrote, the decision “remains for now binding precedent” in the three states.

The next day, Cantu wrote Texas officials again, this time, she says, to clarify what she meant to say in her first letter. Her opponents say she sent the letter to save face.

The state would be required to try “narrowly tailored affirmative action to eliminate the vestiges of its discrimination” if the OCR decided that “race-neutral means” would be ineffective, she wrote.

The Hopwood case did not address affirmative action required to overcome previous bias, she said in an interview six months later, so it is fair to require the state to deliver affirmative action under federal laws that require it.

The fine distinctions between the two types of affirmative action are now understood by both her supporters and her critics, she says.

“It was a very complicated set of legal topics that people were trying to grasp very quickly,” she says. “No, I don’t feel overruled” by the Justice Department.

Even Cantu’s supporters acknowledge that April’s flurry of letters shows her zeal sometimes leads her into trouble. If she had consulted the Justice Department on her first letter to Texas officials, she might have avoided the uproar that followed.

While the controversy sparked a new round of criticisms, it has not created any pressure from within the Clinton administration to force her out, high-level officials who asked not to be identified say.

And, outwardly at least, she remains unflappable.

For Cantu, being stuck in the middle is part of the job. When told by an interviewer that he had talked with “some of her critics,” she interjects: “Both of them?” She punctuates the remark with laughter.

“I don’t have many critics,” she adds.

A version of this article appeared in the December 03, 1997 edition of Education Week as In the Line of Fire


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